[Gnso-ppsai-pdp-wg] Updated document re disclosure standards - some comments and concerns
Carlton Samuels
carlton.samuels at gmail.com
Tue Mar 3 14:35:17 UTC 2015
Thanks for the heavy lifting here Kathy. I belatedly read the document and
I can tell you now your arguments are compelling.
-Carlton
==============================
Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
=============================
On Mon, Mar 2, 2015 at 5:59 PM, Kathy Kleiman <kathy at kathykleiman.com>
wrote:
> Hi All,
>
> First, thank you, Steve, Graeme and All. I know a lot of people have spent
> a lot of time in the IP and Registrar Communities working on this draft. Tx
> you – and appreciate your invitation to comments and concerns!
>
> I have reviewed the Draft carefully and have some initial comments to
> share. Although I spoke with people in the WG while preparing them,
> these comments are my own.(If there is problem with the formatting below,
> please let me know.)
>
> 1. General Comments
>
> a. `Let’s make the wording more neutral. Let’s add “alleged” or
> “claimed” in all references of infringement (e.g., trademarks, copyrights
> of domain names/websites. Another good term would be “claimed infringement”
> -- which is the one used in similar sections of the Digital Millennium
> Copyright Act to the sections we are working on here.
>
>
>
> 2. More substantive comments
>
> a. Are we missing levels of protections for the Customer/Registrant?
> In the Digital Millennium Copyright Act (DMCA), there were two levels of
> protections for the “users.”
>
> i. The
> first was sanctions for misrepresentation. Basically, any company which
> knowingly materially misrepresents that material or activity is infringing
> is liable for damages, including costs and attorney fees caused from injury
> resulting from the misrepresentation. Don’t we need similar sanctions here?
>
>
>
> ii. A
> much higher bar for revealing the identity of the alleged infringer. The
> DMCA allows rapid takedown based on statements very similar to the one we
> proposing, but Reveal is a whole different story. The standard is much
> higher and goes through Court. Thus US Copyright Code, Sec 512(h), requires
> a subpoena to reveal data:
>
> a. [Section 512] “(h) SUBPOENA TO IDENTIFY INFRINGER-
>
> `(1) REQUEST- A copyright owner or a person authorized to act on the
> owner's behalf may request the clerk of any United States district court to
> issue a subpoena to a service provider for identification of an alleged
> infringer in accordance with this subsection…
>
>
>
> Shouldn’t we have a higher standard too? It seems important to balance
> the rights of both sides, including whether the Allegation of Illegality
> sufficiently outweighs the Privacy Interests and Rights of the Battered
> Women’s Shelter, Online Magazine or Bloggers posting unpopular views of
> corruption.
>
>
>
> iii. A
> deep concern about default. As I read the rules, if you don’t respond, you
> lose and your data is revealed. But this is a problem because we can
> think of many reasons why Customers/Registrants would not respond. For
> example:
>
> a. Request came at the beginning of August,
>
> b. Request disappeared into spam;
>
> c. Registrant/Customer is unable to respond (perhaps language
> barriers); and/or
>
> d. Registrant/Customer is scared to respond.
>
>
>
> 2. I would submit that in something as important as revealing
> identity and physical locations, there should be no automatic default. It
> is completely possible that a) the allegations are incorrect on their face
> (no jurisdictional overlap, for example), or b) that there are clear
> defenses on “its face,” e.g., on the website.
>
>
>
> Thus, an anti-bullying group may post the copyrighted logo of a gang
> engaging in bullying (or worse) in a local school or neighborhood; is so,
> the gang’s allegation of copyright infringement could be clearly weighed
> against the “safe neighborhoods for all” activity taking place on the
> website.
>
>
>
> Similarly, an online publication in Europe may have every right to use the
> logo and trademark of a large multinational it is criticizing, or the image
> of Mohammed, without having its identity and address revealed without due
> process.
>
>
>
> Ditto for a battered women’s shelter posting a copyright logo, motto or
> design and urging women to watch for it and those bearing it.
>
>
>
> Due process is not automatic default, but a full and fair review of the
> website and other reachable information, even if the Customer/Registrant is
> unable to respond for herself or himself.
>
>
>
> 3. Option: we might consider Third Party or Independent Review.
> This is something that Steve and Graeme’s draft have already suggested for
> rejections of IP Owner Requests. It could serve Customers too by creating a
> review of default situations – or perhaps an independent forum for Service
> Providers who choose to outsource this difficult evaluation.
>
>
>
> iv. Privacy
> of communication between Customers and their Providers . The rules of
> Section III(A) seem to bar private communication with your Provider.
> Everything a Customer/Registrant might write to their Provider must be
> passed on verbatim (if I read this correctly). But that’s a problem for
> those with English as a second language (or third) or those without
> lawyers, and those simply trying to explain in clear and informal language
> to explain this situation. 0What will happen, I am concerned, is that
> whatever informal response a Customer provides to its Provider will operate
> (unintended) as an Admission Against Interest or an unintended Waiver.
>
> Further, the Customer/Registrant might inadvertently reveal a bit about
> their identity or even location – trying to explain their position clearly
> to the Provider – and this should not be passed on to the Requester
> automatically either. I am not sure of th answer here as IP Owners
> should know something about the response, but not necessarily the full
> communication of the Customer (e.g., he is stalking me).
>
> Thanks for reading!
>
> Best,
>
> Kathy
>
>
> On 3/2/2015 9:54 AM, Metalitz, Steven wrote:
>
> PPSAI WG members,
>
>
>
> Attached please find an updated version of the document Graeme and I
> circulated prior to last week’s meeting. This updated version includes
> three or four wording tweaks, intended to reflect the discussion on last
> week’s call. Looking forward to further discussion on tomorrow’s call.
>
>
>
> Steve Metalitz
>
>
>
>
>
>
>
> *From: *<Metalitz>, Steven <met at msk.com>
> *Date: *Monday, February 23, 2015 at 11:57
> *To: *"'PPSAI (gnso-ppsai-pdp-wg at icann.org)'" <gnso-ppsai-pdp-wg at icann.org
> >
> *Subject: *Re: [Gnso-ppsai-pdp-wg] Category F -- updated status report
> and text for discussion
>
>
>
> PPSAI WG members,
>
>
>
> This follows up on our note of Feb. 3 providing a status report on
> subgroup discussions among some IP interests and p/p service providers
> regarding p/p disclosure standards. To reiterate, the group’s work is not
> meant to obviate or displace the work of the larger PPSAI WG on this issue
> – rather, it is meant to constructively contribute to the discussion by
> producing one proposal on this issue for the larger group’s consideration.
>
>
>
> In light of further consideration and of the need to move forward the WG
> discussion on Category F, we present the attached document that we hope
> will help provide a framework for discussion of the disclosure issue in the
> WG. We emphasize that this is not a proposal from IPC, the Registrar
> Stakeholder Group, or any subset of either, and that we fully anticipate
> the text to be modified and improved through further discussion at the WG
> level. (We also acknowledge that the WG may find the proposal wholly
> unsatisfactory but hope that it will at least help advance debate.)
>
>
>
> The attached is put forward as a starting point, to use intellectual
> property infringement complaints as one illustrative example of minimum
> disclosure standards, in a framework that addresses (1) a service provider
> process for intake of requests; (2) general templates that requests would
> have to meet in order to trigger service provider action; and (3)
> principles governing service provider action in response to a conforming
> request.
>
>
>
> We look forward to the discussion of this document among WG members.
>
>
>
> Graeme Bunton
>
> Steve Metalitz
>
>
>
> *From:* Metalitz, Steven
> *Sent:* Tuesday, February 03, 2015 3:57 PM
> *To:* PPSAI (gnso-ppsai-pdp-wg at icann.org)
> *Subject:* Category F -- status report
>
>
>
> Dear WG colleagues,
>
>
>
> As you know, several PPSAI Working Group members, including
> representatives of the IPC and privacy and proxy service providers, have
> endeavored to develop a collaborative proposal on the minimum standards for
> disclosure (Category F). The group’s work is not meant to obviate or
> displace the work of the larger group on this issue – rather, it is meant
> to constructively contribute to the discussion by producing one proposal on
> this issue for the larger group’s consideration. This is an update on this
> sub-group’s progress.
>
>
>
> But first, a little background: At the face-to-face meeting of the PPSAI
> Working Group in Los Angeles on October 10, 2014, one important topic was
> minimum standards for disclosure of contact information of customers of
> privacy/proxy services who may or may not be using their private domain
> name registrations to carry out infringing or other abusive activities.
>
>
>
> Prior to the face-to-face meeting, IPC participants in the Working Group
> circulated a proposal on this topic. A responsive redline was circulated
> to the WG by Volker Greimann.
>
>
>
> Following extensive discussion of these proposals and of the topic in
> general at the face-to-face meeting, a sub-group of WG participants have
> continued this discussion. The sub-group includes participants from the
> IPC and privacy/proxy service providers. Meeting by teleconference and
> working over e-mail, the sub-group has sought to develop a text that could
> be jointly presented to the PPSAI Working Group as a framework for further
> discussion on the issue of standards for disclosure.
>
>
>
> Some progress has been made, and the sub-group is continuing its efforts
> with the goal of producing a document for presentation to the PPSAI Working
> Group as soon after the Singapore ICANN meeting as feasible. If such a
> document is completed, it is hoped that it would be a constructive
> contribution to eventual WG approval of a set of recommendations on
> “Category F” for inclusion in the Draft Report of the WG.
>
>
>
> Unlike the documents discussed by the full WG last October, the framework
> under discussion does not purport to establish a single general policy for
> when disclosure of contact information in cases of alleged abusive
> activities would be available. Instead, it seeks to focus more narrowly on
> intellectual property infringement complaints as one illustrative example
> of minimum disclosure standards. The framework would describe (1) a
> service provider process for intake of requests; (2) general templates that
> requests would have to meet in order to trigger service provider action;
> and (3) principles governing service provider action in response to a
> conforming request. While considerable progress has been made in the first
> two areas, a number of critical issues remain to be resolved in the third
> area, and discussion has not been concluded on any of the areas.
>
>
>
> The expressed common goal of the discussion group participants is a
> framework that would give requestors a higher degree of certainty and
> predictability as to if, when and how they could obtain what level of
> disclosure; that would preserve for service providers a sufficient degree
> of flexibility and discretion in acting upon requests for disclosure; and
> that would include reasonable safeguards and procedures to protect the
> legitimate interests of customers of accredited proxy/privacy service
> providers. Of course, balancing these interests is the difficult task
> before our working group. As stated, participants in the discussion group
> hope to be able to make a constructive contribution to the WG’s efforts to
> do so.
>
>
>
> Graeme Bunton
>
> Steve Metalitz
>
>
>
>
>
>
>
> _______________________________________________
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>
>
>
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